APPEAL from the Circuit Court of Cook County; the Hon. GEORGE
A. HIGGINS, Judge, presiding.
MR. PRESIDING JUSTICE DIERINGER DELIVERED THE OPINION OF THE COURT:
Rehearing denied September 10, 1975.
This is an appeal from an order entered by the Circuit Court of Cook County granting defendant's motion to quash a search warrant and suppress evidence seized pursuant to that warrant. The State brings this appeal in accordance with Supreme Court Rule 604(a)(1).
The issues presented on appeal are (1) whether defendant, as a subscriber of Illinois Bell Telephone Company, impliedly consented to that company's recordation of the long-distance telephone numbers dialed from defendant's telephone; (2) whether 18 U.S.C. § 2511(2)(a)(i) authorized Illinois Bell to ascertain the long-distance numbers dialed from defendant's telephone; (3) whether 47 U.S.C. § 605 protects the defendant; and (4) whether Illinois Bell violated the Illinois eavesdropping statute (Ill. Rev. Stat. 1973, ch. 38, §§ 14-1, 14-2), by ascertaining the long-distance numbers dialed from defendant's telephone and subsequently disclosing that information to the State's Attorney's office.
On May 8, 1973, John Connolly, an agent of Illinois Bell Telephone Company, swore out a complaint for a search warrant for the person of defendant, Kenneth Smith, and the second-floor apartment at 3531 West Melrose, Chicago, Illinois. The complaint requested permission to seize "any and all machines, devices, contrivances, equipment and documents" use to obtain telephone service with intent to defraud Illinois Bell. The complaint stated the defendant subscribed to an Illinois Bell telephone number at 3531 West Melrose. The complaint further stated that defendant had placed long-distance telephone calls without being charged for them by use of a device which mechanically reproduces tones which allow the user (defendant) to bypass normal telephone company billing procedures. Illinois Bell had determined defendant's illegal use of his telephone by placing a device on defendant's line which ascertained the long-distance numbers illegally dialed from his telephone. The device did not intercept any oral communication. Illinois Bell ascertained the long-distance numbers dialed from defendant's telephone without the knowledge of any governmental agency. The company contacted the State's Attorney's office after acquiring that information.
On February 13, 1974, defendant filed a motion to quash the search warrant and suppress the evidence obtained pursuant to the warrant. On February 14, 1974, following arguments by both sides, the trial court granted defendant's motion. The State now appeals from the granting of that motion.
The State first contends the defendant, as a subscriber of Illinois Bell Telephone Company, impliedly consented to that company's recordation of the long-distance telephone numbers dialed from defendant's telephone. Defendant argues the monitoring by Illinois Bell was for the specific purpose of gathering evidence of a statutory violation, and was not consented to by defendant.
Defendant was a subscribed to an Illinois Bell telephone number. On his telephone, defendant used a "blue box," a device which mechanically reproduced dial tones which allowed defendant to bypass normal Illinois Bell billing procedures. Defendant's telephone, like every telephone in the Illinois Bell system, contained a device which produces a print-out of telephone numbers dialed from subscriber's telephone. This print-out indicates deviations from normal telephone usage. When the print-out from defendant's telephone indicated unusual activity, Illinois Bell placed a device on defendant's telephone line which ascertained the long-distance numbers illegally dialed from defendant's telephone. Illinois Bell used the device to determine whether defendant was properly using his telephone in order that the company could receive compensation from defendant for his use of the company's service.
• 1 In the case of Bubis v. United States (9th Cir. 1967), 384 F.2d 643, 648, wherein the defendant, as in the instant case, used a device to circumvent the telephone company's automatic record-keeping equipment, thereby avoiding long-distance charges, the United States Court of Appeals, Ninth Circuit, held:
"When a subscriber of a telephone system uses the system's facilities in a manner which reasonably justifies the telephone company's belief that he is violating his subscription rights, then he must be deemed to have consented to the company's monitoring of his calls to an extent reasonably necessary for the company's investigation."
In Brandon v. United States (10th Cir. 1967), 382 F.2d 607, the United States Court of Appeals, Tenth Circuit, in affirming defendants' convictions for conspiracy and for defrauding the telephone company of long distance charges by use of a device to circumvent the telephone company's billing equipment, stated:
"[O]ne who directly dials a distant number impliedly agrees that the telephone company may use the means necessary to ascertain where the call originated, the number called, and the duration of the conversation, in order that the proper charge may be recorded. * * *
"* * * one who fraudulently by-passes the billing mechanism has no legal standing to attack any reasonable procedure the telephone company takes to protect itself."
We conclude the defendant in the present case impliedly consented to Illinois Bell's recording of the long-distance ...